Why are we waiting?

The UK has recently been criticised by the UN Committee on the
Rights of the Child over aspects of its provision for children. But
there is one way in which the UK regularly fails children that the
UN did not mention: the way children are made to wait for
increasingly long periods for courts to make decisions about their
future in care proceedings.

Figures (see graph) suggest that the average wait in care
proceedings has risen year by year and is now nearly 11 months. A
significant proportion of children are waiting two years or more.
What we know about child development and placement outcomes for
children of different ages should tell us that children are likely
to suffer long-term harm as a result of these waits.

Most children waiting for a decision in care proceedings will
typically be in foster care, although in some cases a child may
continue to live with their birth families. Those in foster care
may be well cared for, but they will not be in a place where they
can feel secure, or able to put down permanent roots. Neither the
child nor their carers can afford to make a long-term emotional
commitment to one another – and we should remember that these are
children who already have many reasons for feeling insecure and
finding it hard to trust people.

To make things harder, in many cases children in care proceedings
are moved from one placement to another, sometimes several times.
Lengthy court proceedings do not necessarily result in placement
moves. But they make them more likely. This is because, first, the
increasing length of care proceedings places additional demands on
stretched fostering resources and second, it is one thing to agree
to take a short-term placement and another to still be there for a
year, two years or even more.

Children waiting for court decisions are also often subject to a
complex regime of contact with a variety of relatives, since all
options for the children’s future must be kept open until the final
hearing. The need for this contact to take place in neutral venues
will often result in children being transported to and from the
foster home to family centres or offices on a regular basis.
Frequently, children will also be required to attend a family
centre where their own parents’ care of them is assessed, and to
meet psychiatrists and other expert witnesses.

All these moves and changes cannot be easy, but the sheer length of
the wait is likely to be difficult in itself. A significant part of
childhood can go by while adults debate where that childhood ought
to be spent. The importance of forming secure attachments to a
child’s development means that the period of uncertainty,
inevitable when decisions are to be properly made, should be kept
as short as possible. The Children Act 1989 broke new ground by
recognising this in its very first section, and by requiring those
involved in court proceedings to make decisions as speedily as
possible.

But, since the Children Act came into force, the average wait has
grown longer year-on-year. Our estimates for the average length of
proceedings across all courts for the past nine years are shown in
the graph, which is based on data collected by the Lord
Chancellor’s Department and data published in the annual
Judicial Statistics.

We calculate that the average length of care proceedings ending in
2001 was about 47 weeks – a record high, but part of a trend
towards increasingly long proceedings that has been continuing for
two decades. A baby taken into care at six months can expect to be
17 months old before their long-term future is decided. By this
time they would have spent two-thirds of their life, during a time
that is crucially important for the development of attachments, in
one or more temporary care arrangements.

And averages conceal the extreme cases. Our inquiries in one local
authority area found that about 10 per cent of cases went on for
two years and more. Michael Jones (not his real name) was aged 23
months when taken into care but was almost four-and-a-half by the
time a full care order was made. He was looked after by five main
sets of carers, as well as several different short-term respite
carers, between his first removal from his mother and his eventual
placement in an adoptive family. When a decision was finally
reached, some time after the full care order, that he needed an
adoptive family, Michael had reached an age where the choice of
adoptive parents was limited and it took another year to find a
placement for him.

What we know about placement disruption also tells us that, by this
time, the chances of his placement succeeding were considerably
lower than they would have been if he could have been placed two
years previously, since the likelihood of breakdown increases with
age at placement. Adoption is supposed to be permanent, but for a
child placed for adoption at the age of six, the likelihood of the
placement breaking down might be as high as 30 per
cent.¹ The impact on a child of an adoptive placement
failing after such a long wait, and after so many moves, is truly
awful to contemplate.

As Michael’s case illustrates, a lengthy court process is likely
not only to be difficult and distressing for a child, but also
actually reduces options and reduces the chances of stability and
security in the future.

Several children whose cases we have looked at became the subject
of care proceedings as small babies, a stage when there would have
been an ample choice of adoptive families and an excellent chance
of long-term success. But they were already toddlers before they
could start to settle in a permanent home.

Apart from the impact on the children concerned, lengthy and costly
court proceedings also take up the time and money of local
authority social services departments, thereby reducing their
ability to do preventive work that might avoid the need for care
proceedings in the first place.

Why court delays occur – and why the wait keeps getting longer – is
a complex question that several studies have tried to answer, most
recently a Scoping Study carried out by the Lord Chancellor’s
Department.² This study identified as important factors
in delay a lack of judges in the right place at the right time,
poor case management by judges, and a lack of availability of
expert witnesses.

But behind these factors lie other, more fundamental problems. One
is that, in another surprisingly under-reported trend, the number
of care proceedings being brought before the courts has tripled in
the decade after the Children Act. Another is simply that removing
a child from his or her parents on a long-term basis is a painful
and difficult decision for all those involved, and one that it is
very tempting to put off, perhaps by asking for just one more
expert report or one more assessment.

Few people would assert that keeping children waiting for a year is
in their interests. And no one could really argue that it is
acceptable for these waits to get longer year after year. We need
to start seeing the court process as part of the problem and not
just part of the solution. Even while their rights are being argued
about in court, children in limbo are being denied their right to
stable and secure family life. It is our view that these children
are actually being abused by the system that is intended to protect
them. 

Chris Beckett and Bridget McKeigue lecture in social work
at Anglia Polytechnic University, Cambridge. E-mail:
C.O.Beckett@apu.ac.uk
or
B.M.McKeigue@apu.ac.uk  

References

² Lord Chancellor’s Department, Scoping Study on
Delay in Children Act Cases,
www.lcd.gov.uk/family/famfr.htm
, 2002